by Harpreet Kaur, UILS, Panjab University, Chandigarh.
After much delay, the controversial communal violence bill has been cleared by the Union Cabinet after the removal of certain provisions, reducing the role of legislation in the handling of riots and making it neutral between communities. The Bill seeks to make the definition of a group hit by communal violence as community-neutral and leaves the prevention and control of communal violence especially by the states, with the Centre playing a coordinating role. The ‘Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2013’ proposes to impose duties on the Centre and State governments and their officers to exercise their powers in an impartial and non-discriminatory manner to prevent and control targeted violence, including mass violence against religious or linguistic minorities, SCs and STs. The Bill also proposes to constitute a body- National Authority for Community Harmony, Justice and Reparation- by the Centre to exercise the powers and perform the functions assigned to it under this Act.
Highlights of the Bill:
- Bill provides for the following results: prevention of communal violence, speedy investigation, imposition of enhanced punishment on the persons involved in communal violence, providing relief and rehabilitation facilities to the victims, creating institutional arrangements for speedy investigations, disposal of cases and providing relief etc.
- Centre does not override state nor hit the federal structure but has a co-ordinating role. Earlier, Centre could rush forces on its own to communally disturbed areas but now it can do so only if the state concerned demands additional paramilitary forces.
- The Bill flags dereliction of duty by a public servant to ensure that they don’t remain mute spectators to any such incident. It is for the first time that a Bill has specifically fixed the responsibility of public servants in case of breach of command and failure to exercise control over subordinates under their direct command.
- The Bill defines organised communal violence saying that it will include continuing unlawful activity of a systematic nature having a particular religious and linguistic identity done by an individual or jointly with others or being part of an association.
- The Bill talks about offences for breach of command responsibility if an officer fails to exercise control over his subordinates.
- The Bill provides punishment of three years with fine for hate propaganda and life term for organised communal violence. It also provides three years jail for financially aiding such violence and jail for 2-5 years for dereliction of duty by an officer.
Main opposition parties including BJP had stubbornly opposed the Bill. The main opposition of these political parties to the Bill is that if enacted it would play havoc with the federal structure of the constitution and lead to avoidable tensions between the Centre and State. Political parties including BJP, Akali Dal, Shiv Sena and BSP that are opposing the bill see it as usurping the rights of the state. Another point of opposition regarding collective violence committed against a religious or a linguistic community is that the toothless NHRC and SHRC are expected to oversee the performance of functionaries relating to the maintenance of communal harmony. According K.G. Balakrishnan, the commission is short of staff to take the added responsibility if the anti-communal violence bill is passed in the present form. “The commission will have to share a huge responsibility for which its present capacity in terms of staff and infrastructure will not be sufficient”, he said referring to the anti-communal violence bill.
Flaws in the bill:
The new Communal Violence Bill addresses the issue by creating new offences such as `dereliction of duty’ and `breach of command responsibility’ applicable to public servants, which include both prevention of communal violence as well as acts of commission and omission and also failure to control subordinates. The range of `dereliction of duty’ is wide, but its punishment is inadequate- imprisonment from two to five years, and a fine. The offence relating to breach of command responsibility is seriously flawed. The commanding officer can be held liable only if he knew, given the circumstances, that those under his command would commit an offence relating to communal violence and (not or) he failed to take necessary steps to prevent the offence or failed to submit the matter to the competent authorities for investigation and prosecution.
The Bill provides that civil servants are required to send the reports to the home ministry. But its recommendations are not binding. However, instead of being thrown into the dustbin, as are the recommendations of judicial commissions, or the National Human Rights Commission (NHRC) and the National Minorities Commission (NMC), governments must give their reasons for not acting on them within seven days.
The Bill also provides for a National Authority which will receive and act on complaints against public servants. This is both good and bad. Until now, citizens have had to go to court to get public servants punished. The National Authority can also approach the courts. Of course, courts are more likely to pay heed to petitions filed by a body appointed by the PM and the leader of the opposition, rather than those filed by private citizens. But the question is: Do we need another National Body to intervene solely in cases of communal violence? What is the use of another advisory body meant to deal with communal violence?